While the vast majority of instances of age discrimination more traditional forms of age discrimination (i.e., older employees being let go as part of a layoff or RIF), many people might be surprised by the number of times we hear from employees that are fired or let go (or simply paid less) because they are younger than some of their more senior colleagues. “Reverse” age discrimination is discrimination against younger employees or favoring older employees for no other reason than their age. (This should not be confused with an employer setting standards for a minimum level of experience, so long as it isn’t tied to a specific age). As we explain below, reverse age discrimination is legal under federal law, but illegal under New York State’s and New York City’s anti-discrimination laws.

The Age Discrimination in Employment Act

In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) with the following explicit purpose:

[T]o promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.

To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; or

To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

HOWEVER, many people do not realize is that the ADEA only prohibits discrimination against employees over the age of 40. The ADEA could not be more clear:

The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.

Thus, the ADEA does not prohibit discrimination against individuals under the age of 40.

U.S. Supreme Court Confirms Reverse Age Discrimination Does Not Violate ADEA

In General Dynamics Land Systems, Inc., v. Cline, the U.S. Supreme Court dismissed a claim by a group of employees ages 40 to 49 that their employer favored employees over age 50 when it eliminated its future obligation to pay retiree health benefits for any employee under 50 years old. The plaintiffs in that case were still within the age range covered by the ADEA, yet the Supreme Court analyzed the “text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes,” and concluded that the “statute does not mean to stop an employer from favoring an older employee over a younger one.” As a result, the ADEA is essentially a one-way street protecting older employees from discrimination while permitting an employer to discriminate in favor of these older employees.

Following the Supreme Court’s decision in General Dynamics, the EEOC amended its Regulations to state: “Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old.”

New York State and New York City Human Rights Laws

While it is clear that reverse age discrimination is permitted under federal law, the same DOES NOT hold true for the New York State Human Rights Law and the New York City Human Rights Law because these statutes limit age discrimination more broadly and are not limited to only those employees age 40 and above.

The NYSHRL makes it unlawful to discriminate against any individuals over the age of 18:

It shall be an unlawful discriminatory practice . . . [f]or an employer . . . to refuse to hire or employ or license or to bar or to terminate from employment an individual eighteen years of age or older, or to discriminate against such individual in promotion, compensation or in terms, conditions, or privileges of employment, because of such individual’s age. (N.Y. Exec. Law § 296 (3-a))

Similarly, the NYCHRL makes it unlawful to discriminate against individuals on the basis of their age:

It shall be an unlawful discriminatory practice . . . [f] or an employer or an employee or agent thereof, because of the actual or perceived age . . . to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

Because the NYCHRL was specifically intended to be “more protective than its federal and state law counterparts,” there is little doubt that the NYSHRL’s protections against reverse age discrimination apply with at least equal force under the NYCHRL.

While the above makes it clear that reverse age discrimination is illegal under New York State and New York City law – but legal under the federal ADEA – this is an issue that many attorneys do not always understand. As a result, if you have any questions regarding whether you have been subjected to reverse age discrimination, it is important that you consult with an attorney that has extensive experience in this field. If you would like our assistance in being connected with an attorney, please fill out the form below.

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About Publius

"Publius” a former labor and employment litigation attorney in New York City with experience representing both management and employees in a broad range of labor and employment matters. As a "reformed" attorney, Publius is looking to provide the people of New York City with information that will educate them as to their legal rights and, if appropriate, connect individuals with attorneys that can assist them.